Important Note: The following is intended as a general outline of Cayman Islands law in this area. It is not a substitute for specific advice concerning specific situations.
What legislation is applicable to bankruptcies and reorganisations?
Corporate insolvency in the Cayman Islands is governed by the Companies Law (1998 Revision).
The term ‘bankruptcy’ is generally limited in Cayman Islands law to individual insolvency, which is governed by the Bankruptcy Law (1997 Revision) and is outside the scope of this work.
Part V of the Companies Law deals with the winding up of companies, both voluntarily and compulsorily. Its provisions are based on those of English Companies Acts prior to the Insolvency Act 1986. The Cayman Islands follow the UK Insolvency Rules 1986, insofar as they are relevant, and with necessary adaptations to suit local circumstances.
2. Excluded Entities:
What entities are excluded from bankruptcy proceedings and what legislation applies to them?
Winding up under the Companies Law is restricted to companies incorporated and registered in the Cayman Islands. It does not extend to partnerships, which are dealt with under the Partnership Law, or to individual insolvency as noted above.
It is not possible to wind up the business in the Cayman Islands of a foreign company, even if the Cayman Islands are its principal place of business. In such a case proceedings would have to be commenced in the company’s country of registration, though the courts of that country would be able, as noted below, to request assistance from the courts of the Cayman Islands. This would extend to the appointment of ancillary receivers or liquidators to assist those appointed overseas.
3. Secured Lending and Credit (Immovables):
What are the principal types of security devices that are taken on immovable (real) property?
The principal type of security device taken on immovable (real) property is a registered charge. This is registered in the Incumbrances Section on the land register. By virtue of the Registered Land Law (1995 Revision) certain terms as to enforcement of the charge, are automatically implied in the charge agreement unless expressly varied or excluded in the agreement. The Court must sanction any such variations before they may be acted upon by a Chargee. Once registered, a charge takes priority over subsequently registered charges. In addition, if a registered charge expressly reserves the lender’s right to make further advances and such right is noted on the land register (as it invariably is), any further advances by the lender up to the total sum secured rank in priority to any subsequent charge.
4. Secured Lending and Credit (movables):
What are the principal types of security devices that are taken on movable (personal) property?
Devices used for movables include legal and equitable mortgages and charges of securities, ships, aircraft and vehicles, hypothecations of cash deposits and legal assignments of things in action.
A debenture (whether by way of fixed or floating charge) or other conditional bill of sale charging "personal chattels" located in the Cayman Islands is deemed to be a bill of sale and must be recorded at the Public Records Office within 30 days failing which it is void.
All mortgages and charges made by a Cayman company in respect of its assets should be entered in the company’s Register of Mortgages and Charges maintained on the company’s Minute Book at its registered office in the Cayman Islands. The Register of Mortgages or Charges is open to inspection by any member or creditor of the company.
5. Unsecured Credit:
What remedies are available to unsecured creditors (e.g. seizures, attachments, judgments, etc.)? Are the processes difficult or time consuming? Do any special procedures apply to foreign creditors?
Apart from the winding up process, unsecured creditors can only recover debts by obtaining and enforcing judgment. Interim orders for delivery up of assets pending judgment are not available. However, the Cayman courts do have jurisdiction to grant injunctive relief which may be granted both before and in aid of execution of a judgment to restrain any disposition or dissipation of assets so as to frustrate satisfaction of a judgment. In exceptional cases, a search and seizure order may be granted to prevent dissipation of assets or destruction of evidence.
The speed and ease of obtaining judgment against a debtor depend upon the extent to which the proceedings issued by the creditor are contested. If the creditor believes that there is no defence to the claim, an application may be made for summary judgment on the claim. If a debtor fails to give notice of intention to defend proceedings issued by a creditor, or having done so fails to serve a defence on the creditor, a default judgment may be entered against the debtor.
If the proceedings are contested, a creditor who is ordinarily resident outside the Cayman Islands may be ordered by the Court, on an application by the debtor, to give such security for the debtor’s costs of the proceedings as the Court thinks just.
Once a judgment has been obtained, it may be enforced by one or more of the following remedies:
- A writ of fieri facias or of sequestration by which the debtor’s goods are seized and sold;
- Garnishee proceedings, or attachment of debts;
- A charging order over the debtor’s land or securities;
- The appointment of a receiver over the debtor’s business or assets;
- An order attaching the debtor’s earnings ; and
- An order for the debtor to be committed to prison for wilfully refusing to pay the debt.
What court(s) are involved in the bankruptcy process? Are there restrictions on the matters that the court(s) can deal with?
Corporate insolvency proceedings are brought in the Grand Court of the Cayman Islands. Subject to the minimum debt (equivalent to US$120) upon which a winding up petition can be presented, there is no restriction on the jurisdiction of the Grand Court over the winding up of Cayman Islands companies. Appeal lies from the Grand Court to the Court of Appeal of the Cayman Islands and from there, with leave, to the Privy Council in England.
7. Voluntary Liquidations:
What are the requirements for a debtor to commence a voluntary liquidation of its business? What are the effects of the commencement of the liquidation?
A company can be put into voluntary liquidation by a special resolution passed by the members. A special resolution requires the support of two thirds of those voting or such higher proportion as the Articles of Association provide.
Alternatively, a voluntary winding up can occur when the company's articles provide for the dissolution of the company after a certain time or on the occurrence of a particular event. In such case only an ordinary resolution (simple majority) is required.
The effect of such resolutions is that the company ceases to carry on its business except as may be required for its beneficial winding-up and liquidators take over the functions of the directors. Subsequent share transfers are void.
8. Involuntary liquidations:
What are the requirements for creditors to successfully place a debtor in involuntary liquidation? What are the effects of the commencement of the liquidation?
The principal ground for a creditor’s petition to wind up the Company is that it is unable to pay its debts. This will be presumed if the company has for three weeks failed to pay a debt equivalent to US$120 at least following a formal written demand delivered to its registered office. It is also presumed to be the case if execution of any judgment debt against the company is returned unsatisfied in whole or in part.
If a winding up order is made, there is an automatic stay of all proceedings against the company, which may not be commenced or proceeded with except with the leave of the court. On the making of a winding up order, the court will appoint one or more persons to act as official liquidators. There is no system of licensed insolvency practitioners, but the court will only appoint someone who it deems to be fit and proper to act as official liquidator.
9. Voluntary Reorganizations:
What are the requirements for a debtor to commence a financial reorganization? What are the effects of the commencement of the reorganization?
A debtor has to fulfil no statutory requirements before commencing a financial reorganisation. However, if it is to be binding on all the company’s creditors or members (as the case may be), it must be sanctioned by the Court: the company must show that 75% of the company’s creditors or members (as the case may be) agree to the reorganisation at a meeting convened by order of the Court.
Where the purpose of the arrangement is the reconstruction of any company or companies or the amalgamation of any two or more companies, the court has wide powers to make consequential orders for facilitating the scheme, including the transfer of liabilities of the transferor company and provision for dissolution of the company without a winding up.
The scheme becomes effective when a copy of the court order is delivered to the Registrar.
10. Involuntary Reorganizations:
What are the requirements for creditors to commence an involuntary reorganization? What are the effects of the commencement of the reorganization?
There is no provision for creditors to commence an "involuntary" reorganization however, where a company under pressure from its creditors wishes to make a composition or agreement which will be binding on them, it may apply to the Court for sanction: see Section 9 above. Any arrangement entered into between a company about to be wound up voluntarily and its creditors is binding on the company if sanctioned by a special resolution, and the creditors if acceded to by 75% in number and value of the creditors.
11. Doing Business in Reorganizations:
Under what conditions can the debtor carry on business during a reorganization? What conditions apply to the use and sale of assets, the availability of credit, the position of creditors who supply goods or services after the filing? What are the roles of the creditors and the Court in supervising the debtor’s business activities?
There are no statutory restrictions on the manner in which a company which is the subject of a scheme of arrangement can carry on business, though the scheme itself may contain such restrictions; indeed the court may require them before approving a scheme. Where a reorganisation has been sanctioned by the court, creditors bound thereby may apply to the court for enforcement of its terms.
12. Successful Reorganizations:
What features are mandatory in a reorganization plan? How are creditors classified for purposes of a plan and how is the plan approved?
The mandatory features include the obtaining of court approval following acceptance of the plan or scheme by the creditors/members: see section 9 above. As to the classification of creditors for voting purposes, this is for the proponents of the scheme to justify to the court as being fair. Classification could, for example, be based on priority or security, or on other factors such as location.
13. Unsuccessful Reorganizations:
How is a proposed reorganization defeated and what is the effect of the plan not being approved? What happens if there is default by the debtor in performing an approved plan?
If the creditors/members or the court do not approve a scheme (see section 9 above) it never takes effect.
Any party bound by the scheme can apply to be heard by the court in the event of default by the company.
14. Bankruptcy Processes:
During a bankruptcy case, what notices are given to creditors? What meetings are held? What committees are or can be formed? Can creditors initiate proceedings to pursue remedies against third parties or changes in the administration of the case?
In a winding up by or under the supervision of the court, after a petition has been presented and served on the company, a notice of the hearing of the petition must be advertised in the Cayman Islands Gazette. The advertisement must give certain details of the company and of the petitioner, the date on which the petition was presented, the venue fixed for hearing of the petition, and must state that any person intending to appear at the hearing (whether to support or oppose the petition) must give notice of his intention to do so. The court may dismiss any petition not properly advertised.
There is no statutory obligation on the official liquidator once appointed to produce a statement of affairs of the company or a report on the winding up, although he is likely to do so, following the UK practice.
There is no statutory power in the official liquidator or in the creditors on contributories of a company to summon or requisition meetings. However, the court may direct meetings of creditors or contributories to be summoned, held and conducted in such manner as the court directs for the purpose of ascertaining their wishes as to any matters relating to the winding up. The function of any creditors committees formed thereby is purely consultative.
When a winding up order has been made, the power to bring proceedings against third parties in the name of the company vests in the official liqudator with the sanction of the court. If he fails to pursue remedies against third parties, an aggrieved creditor may apply to the court for his removal.
15. Claims and Appeals:
How is a creditor’s claim submitted and what are the applicable time limits? How are claims disallowed and how does a creditor appeal a disallowance?
A creditor is required to submit his claim in writing to the official liquidator in the form known as a "proof of debt" which should be sent to him by the official liquidator. A creditor’s proof of debt must contain particulars of, inter alia, the total amount of the claim as at the date of liquidation, whether that amount includes outstanding uncapitalised interest, how and when the debt was incurred and particulars of any security held and the official liquidator is entitled to call for further particulars or the production of documentary or other evidence in support of the claim. Every creditor must bear the cost of proving his own debt.
The Rules do not provide a particular time limit for creditors to file proofs of debt. This is left to the discretion of the Official Liquidator.
A proof of debt may be admitted for dividend either in whole or in part, or may be rejected, in which case the official liquidator must send to the creditor a written statement of his reasons.
A creditor who is dissatisfied with the official liquidator’s decision on his proof may apply to the Grand Court for the decision to be reversed or varied, within 21 days of the receipt of the official liquidator’s statement of reasons. The court will direct how the matter is to proceed, depending on the extent of factual dispute.
16. Priority Claims:
What are the major (a) governmental (b) non-governmental privileged and priority claims in Liquidations and reorganisations? Which priority and privileged claims have priority over secured creditors?
Governmental priority claims include all taxes due within 12 months before the date of the winding-up resolution or order (defined as "the relevant date").
Non-governmental priority claims include wages or salary in respect of services rendered to the company within a short period of the relevant date and certain qualifying deposits at a licensed bank being wound up.
The above-mentioned governmental and non-governmental priority debts rank equally among themselves and are paid pari passu. These debts have priority over the claims of debenture holders under any floating charge created by the company and are to be discharged forthwith, subject to the retention of funds for the costs and expenses of the winding up, which are the first charge in order of priority.
How and when are distributions made to creditors in liquidations?
Before declaring a dividend, the official liquidator must give notice of his intention to do so to all creditors whose addresses are known to him and who have not proved their debts and must state in the notice his intention to declare a dividend within the period of 4 months from the last date for proving specified by him. The official liquidator may not declare the dividend so long as there is pending any application to the court to reverse or vary a decision of his on a proof, or to expunge a proof, or to reduce the amount claimed, except with the leave of the Court. Thereafter, the official liquidator gives notice of the dividend to all creditors who have proved their debts, setting out (inter alia) the total amount to be distributed, the rate of dividend, and whether and if so when any further dividend is expected to be declared.
18. Voidable Transactions:
What types of transactions can be annulled or set aside in bankruptcies and what are the grounds? What is the result of a transaction being annulled?
Where any company is being wound up by the court or subject to the supervision of the court, all dispositions of the property of the company and every transfer of shares in the company made between the date of presentation of the Petition and the order for winding up are void, unless the court orders otherwise.
In addition, any dealing with the property of the company within 6 months before the presentation of a winding up petition which was done in favour of any creditor, with a view to giving such creditor a preference over the other creditors can be set aside by the court on the application of the official liquidator.
The Fraudulent Dispositions Law 1989 also provides that every disposition of property made with an intent to defeat an obligation to a creditor and at an undervalue is voidable on the application of a creditor thereby prejudiced made within 6 years of the date of the disposition. Such a disposition could be set aside only to the extent necessary to satisfy the obligation to the applying creditor together with costs at the court’s discretion. In addition, if the court is satisfied that the transferee has not acted in bad faith, the disposition will be set aside subject to the proper fees, costs, pre-existing rights, claims and interests of the transferee.
19. Directors and Officers:
Do corporate officers and directors have personal liability for any pre-bankruptcy actions or for particular types of claims? Can they be subject to other sanctions for other reasons?
There are no statutory provisions in respect of fraudulent or wrongful trading by directors and officers. Directors do not expose themselves to personal liability merely by causing the company to break its contractual obligations, for example, in order to assist the company in trading out of its financial difficulties.
However, failure to wind up a company as soon as they become aware that the company is insolvent and that it will not be able to trade out of its difficulties, may expose directors to a claim for misfeasance or breach of trust by any official liquidator, creditor or contributory of the company.
In addition where in the course of the winding up of a company it appears that any director or officer of the company has misapplied or retained in his own hands or become liable or accountable for any money of the company, the court may compel him to repay such moneys or to contribute such money to the assets of the company by way of compensation as the court thinks just.
20. Creditor Enforcement:
Are there processes by which a business can be liquidated outside of the bankruptcy process (eg by seizure by a creditor) outside of Court proceedings? How are these processes carried out and what are the consequences?
Creditors may enforce certain proprietary and contractual rights without an application to the court. Examples include:
- Hire Purchase Agreements: title to the property only passes at the end of the contract. Creditors usually have a contractual right to enter into the hirer’s premises and seize the property when payment instalments under the contract are in arrears.
- Retention of title clauses (‘Romalpa’ clauses): it is common for suppliers to reserve title to goods until payment in full has been received. An unpaid supplier could demand the return of his goods which remained identifiable and separate or severable from the company’s own goods.
- Rights of distress under a lease: Landlords sometimes have rights to enter leased premises and seize goods to the value of arrears of rent and service charges.
- Rights under security documentation: secured creditors often have contractual rights to appoint a receiver to manage the company’s affairs, or to realise assets to the value of the charge debenture/security.
21. Informal Restructurings:
Can a restructuring be carried out without formal proceedings? If so, how are such restructurings implemented?
If it is to be binding on all creditors and members, any such scheme must have the sanction of the Court before it is effective. Binding arrangements cannot therefore be made informally. See Section 9 above. There is no statutory provision for arrangements such as company voluntary arrangements or administrations
22. Corporate Procedures:
Are there corporate procedures for the liquidation or dissolution of a corporation? How do such processes contrast with bankruptcy proceedings?
Other than by winding up by or subject to the supervision of the court, or voluntarily (see sections 7 and 8) a company can be struck off the register and dissolved by administrative action.
The Registrar may, if he has reasonable cause to believe that a company is not carrying on business or is not in operation, strike its name from the register, whereupon it is deemed dissolved. The company can itself request the taking of this step.
Any assets belonging to the company when it is struck off vest in the Crown for the benefit of the Cayman Islands. This striking off does not affect the liability, if any, of any director or shareholder of the company; and the company or any shareholder or creditor may apply to the courts in most cases, within two years of the striking off for the re-instatement of the company.
The main advantage of this administrative method of dissolution is that it is relatively simple and inexpensive. The main disadvantage is that there is no control over its timing, which is in the hands of the Registrar. Also, this method cannot be used where the company has outstanding unsatisfied liabilities (although non-payment of the government fees may result in the Registrar striking the company off in due course in any event).
23. Conclusion of Case:
How are liquidation and reorganisation cases formally concluded?
In the case of a winding up by or subject to the supervision of the court, there are two methods for concluding the liquidation:
- When the affairs of the company have been completely wound up, the official liquidator can apply for an order that the company be dissolved. This can only be reversed by the Court of Appeal.
- Alternatively the liquidator may simply notify the Registrar that the affairs of the company are fully wound up. The Registrar may then strike the company off the register and the company is dissolved. Such a dissolution may be reversed by the court on application by the company itself, any member or creditor who is aggrieved by it.
In a voluntary winding up, once the affairs of the company are fully wound up, the liquidator must make a report showing how the winding up has been conducted, account for the disposal of the company’s property and call a general meeting of the shareholders of the company to lay the report before them. Following such meeting the liquidator makes a return to the Registrar of the holding of the meeting. Three months from the date of registration of this return the company is deemed to be dissolved. The Court has no jurisdiction to reverse such a dissolution.
24. International Cases:
What recognition or relief is available concerning an insolvency proceeding in another country? How are foreign creditors dealt with in liquidations and reorganisations? Are foreign judgments or orders recognised and in what circumstances? Is your country a signatory to a treaty on international insolvency or on the recognition of foreign judgments?
The court may recognise a liquidator appointed by a foreign court for the purposes of bringing proceedings in the Cayman Islands if there is a sufficient connection between the company and the foreign jurisdiction by which he was appointed.
The Cayman Islands are not a signatory to any treaties on international insolvency. However, in a case involving an international and cross border insolvency, the Grand Court has exercised its discretion to order that a committee of creditors should be established in the Cayman Islands to bring the liquidation of the company into line with similar proceedings in other jurisdictions. In a winding up in the Cayman Islands, no distinction is drawn between domestic and foreign creditors.
The Grand Court is entitled to request assistance in matters of insolvency from courts having jurisdiction in insolvency in any part of the United Kingdom. This procedure has been successfully invoked on a number of occasions.
The Cayman Islands have enacted a Foreign Judgments Reciprocal Enforcement Law, which provides for the registration for foreign judgments in the Cayman Islands. However, this Law has so far only been extended to certain states and territories of Australia. Consequently, the recognition and enforcement of foreign judgements are determined according to the common law principles including in particular whether the foreign court had jurisdiction according to Cayman Islands Law.
25. Pending Legislation:
Is there any new or pending legislation affecting domestic Bankruptcy procedures, International Bankruptcy Corporation or recognition of foreign Judgements and Orders?
For some time consideration has been given to the enactment of separate insolvency legislation in the Cayman Islands, incorporating both the existing provisions in the Companies Law and at least some of the statutory provisions in the UK Insolvency Act 1986. These might include the introduction of administration proceedings, the jurisdiction to establish liquidation committees and enlarged statutory remedies to be employed against delinquent directors and officers. It is also possible that tailor-made Cayman Islands Insolvency Rules based on the UK Rules of 1986 may be introduced in any event in the comparatively near future, irrespective of the introduction of new legislation. However, there are currently no firm proposals as to these matters.
Consideration is also being given to the need for a law on cross-border insolvency, perhaps based on the Model Law on Cross-Border Insolvency recently adopted by the UNCITRAL. Recent experience shows that the Cayman Islands have a major role to play in this field.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.